Whether English law maintains the right of a party to maintain legal privilege or whether in instances where a state of mind or certain actions are in issue there is a general implied waiver of privileged material

Judgment was handed down in the case of Farm Assist Ltd (Claimant) v Secretary of State for the Environment, Food and Rural Affairs (Defendant) [2009] EWHC 1102 (TCC) at the High Court on 12th December 2008.

FACTS

In the proceedings, Farm Assist Ltd (FAL) contended that an agreement entered into as a result of a settlement brought about by mediation should be set aside for economic duress.

The Department of the Environment, Food and Rural Affairs (DEFRA) contented that FAL should give disclosure of certain legal advice given to FAL, its officers and/or Mr Hepworth regarding issues concerning DEFRA. This documentation would otherwise be covered by legal advice privilege.

DEFRA submitted that FAL's claim to set aside the mediation settlement because of economic duress leads to an implied waiver of any legal advice privilege because the state of mind of Mr Hepworth, acting on behalf of FAL, is put in issue.

FAL submitted that there is nothing in the claim for duress which gives rise to an implied waiver and that it could maintain its claim to legal advice privilege.

HELD

The Hon Mr Justice Ramsey found that in English law the legal advice privilege is absolute and is not overridden as a matter of policy.

English law does not follow the approaches in the United States decision in Hearn v Rhayand in the Australian decisions such as Wardrope v Dunne which impose a more widely implied waiver based on fairness. The test for a waiver of privilege in English law is based neither on general principles of fairness nor on relevance.

Implied waiver arising from particular proceedings or pleading allegations in those proceedings is limited to proceedings between solicitor and client, the provisions of which are set out in Lillicrap v Nalder and Paragon Finance.

The rationale for an implied waiver in proceedings between a party and its solicitor is that the party cannot, as a matter of fairness, subject the confidential relationship with its solicitor to public scrutiny and at the same time seek to preserve the confidentiality of that relationship.

While a person's state of mind and also that person's actions may well have been influenced by legal advice, there is no general implied waiver of privileged material merely because a state of mind or certain actions are in issue. The underlying policy considerations for creating privilege to protect communications between a client and solicitor are treated as paramount even if some potential unfairness might occur.

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